Libby's lawyers put on a breathtaking display explaining the reasons why they need to get every kitchen sink used at Time Magazine, NBC News, and the NYT (thanks to Tom Maguire for getting the files). The short version of their argument is that Matt Cooper is biased, Andrea Mitchell is suspicious, and Judy Miller is unreliable. But I'm also fairly certain that they are using Judy's and Cooper's efforts to maintain Libby's own confidentiality as evidence against their credibility.
I'm fairly sympathetic to the general direction, though not the scope, of Libby's Mitchell and Cooper requests. I think Libby ought to be able to establish, in court, what the hell Mitchell was talking about when she claimed to have known of Plame's employ at the CIA. And he ought to be able show that Cooper's notes do not mention some of the things Cooper has testified to (if in fact they do not).
But Libby's filing related to Judy and the NYT is a piece of work. An amazing piece of work.
Libby starts by totally mischaracterizing the nature of the lie he is accused of telling to Judy. He does this by citing the chronology in the first charge of the indictment, pretending that is what he is accused of lying to Judy about.
It alleges that on June 23 Mr. Libby "informed [Ms. Miller] that Wilson's wife might work at a bureau of the CIA," Count One, P 14; that on July 8, Mr. Libby advised Ms. Miller of his belief that Mr. Wilson's wife worked for the CIA, id. P 17; and that on July 12, Mr. Libby spoke with Ms. Miller about Ms. Wilson's employment, id. P 24.
Libby's filing then goes on to provide a shitload of evidence that Judy's comments about these meetings are inconsistent. But he points to precisely the same kind of language games that I have suggested Judy used to shield Libby and/or other members of the cabal. For example, Libby points to the language she uses to describe the June 23 meeting.
For example, she has written that she testified to the grand jury only that she "believed [her June 23 meeting with Mr. Libby] was the first time [she] had been told that Mr. Wilson's wife might work for the CIA."
Libby no doubt knows why she used that language better than I do, but I'd hazard a guess that Judy's hiding an earlier mention of Wilson, possibly by Libby himself. Libby goes on to complain about the language Judy used with her colleagues at the NYT.
She was even more equivocal with her New York Times colleagues, telling them that her notes "leave open the possibility that Mr. Libby told her [on June 23 that] Mr. Wilson's wife might work at the agency."
This is where I lost my breath. A lot of ink has been spilled about how hostilely Judy treated the NYT's story on her involvement. And on this account, I'd bet a great deal of money, enormous sums, that she used the qualified, "leave open the possibility" because Judy didn't want her colleagues to make the claim that her notes incriminated Libby on an IIPA violation. When in fact they did. Judy was protecting Libby when she used this qualifier!!! But now Libby is using it to impugn Judy as a witness.
And it gets better. Libby then goes onto to complain that Judy didn't admit to the June 23 conversation at first.
Notably, Ms. Miller did not remember that the June 23 conversation had even occurred until after her first grand jury appearance when she came across a notebook recording the interview.
Uh, yeah Scooter, she didn't recall that conversation because you gave her clear instructions that she shouldn't recall it, not if she could help it, and she went to some length to try to comply with your request.
Libby goes on at some length, repeatedly portraying comments Judy almost certainly made to limit the damage her testimony would do to her buddy Scooter as proof that she is unreliable.
But the whole argument is based on a ruse. I noted above, that Libby quotes from the chronology of the indictment, pretending that the events rehearsed in the chronology are those he has been accused of lying about. But that's a misrepresentation. Conveniently, Libby makes no mention of the only thing relating to Judy he has been accused of lying to investigators about:
LIBBY did not advise Judith Miller, on or about July 12, 2003, that LIBBY had heard other reporters were saying that Wilson’s wife worked for the CIA, nor did LIBBY advise her that LIBBY did not know whether this assertion was true;
Libby spends a good deal of time challenging the accuracy of details from Judy's testimony about the earlier meetings. But nowhere does he suggest she was mistaken or inaccurate in her general assertion that Libby had discussed Plame with her twice before the July 12 meeting. But if she wasn't mistaken about the general assertion, then the claim that Libby could have suggested on July 12 that he didn't know whether assertions about Plame were true--assertions he had already presented twice as true--is ridiculous!
Libby's not after Judy's notes to impugn her wrt the one Obstruction charge she is name in. He's after her notes so he can show just how many people were leaking to Judy about Joe Wilson and Plame. And to try and get her notes, he's attacking her for all the actions she took precisely to heroically protect Libby and the cabal.
It's a risky strategy, Scooter. At some point, Judy's going to grow weary of playing your fall gal.